In this Agreement: a) the "Application" means the Above Border location based country tracking Mobile Application, as upgraded, enhanced or modified by Company from time to time, which may be downloaded from the APP store as defined on the company WEB site at (http://Aboveborder.com). The Application is a smart phone based application that provides an efficient approach to tracking, recording and reporting of the number of days the user is in a specific country or legal jurisdiction where this information is important to regulatory and legal compliance in areas such as immigration, tax, insurance or health care. The user can also just have fun keeping track of their travels in terms of the number of days they have spent in different countries. The Application wakes itself up on a regular basis, determines what country the user is in and records this both on the user’s mobile device and the Above Border corporate server. The user can then use the Application’s comprehensive reporting feature to determine days in a specific country for various compliance issues. The Application may alert the user when they are approaching critical date and time limits via alarming on the mobile device or through the users email. Regular synchronization to the Above Border central database allows for the recovery of recorded information should the user lose, damage or replace their current mobile device; b) the "Content" means and includes any and all materials, information, reports or data displayed, distributed, provided or performed on the Site or through the Application or generated through the Application or Services, which may include but not be limited to text, software, scripts, graphics, maps, photos, sounds, music, videos, logos, interactive features and other materials. c) the "Services" are more fully described on the Site and/or in the Application and may include, but not be limited to, downloading, installation and/or use of the Application and access to or use of the Site and Content, and local search applications that are intended to provide a rich mobile user experience, together with any other products or services Company makes available or agrees to perform for or on behalf of you, as well as the offering of any Content on the Site or through the use of the Services. All references to the Services shall include the use of the Application, the Content and the Site where the context requires. d) the "Site" means and includes a number of web sites available at or through various domains used, owned or operated by Company from time to time, including but not limited to Above Border.com, (including any and all sub-domains, directories, sub-directories, files, folders and related URL's).
2. LIMITED LICENSE
The Application and Services are licensed, not sold. You do not own the Application or Services. Subject to the terms and conditions of this Agreement, Company grants you a limited, personal, revocable and non-exclusive license to access, use and receive one copy of the Application and the Services as made available and permitted by Company from time to time. The Services may be utilized by you through the processes provided on the Site or through installation and use of the Application only for your own personal, non-commercial use, and not for the use or benefit of any third party. You will not sell, copy, transfer, make available, rent, lease, license, sub-license or lend the Application or Services to any third party and you will not use the Application or Services as a service bureau or application service provider providing products, services, information or Content to third parties. This Agreement and the license granted is void where prohibited by law, no offer to you to enter into this Agreement is valid in such jurisdictions, and any license granted to you to use the Application or Services is void and, if necessary to give effect to the foregoing, revoked in such jurisdictions, provided that, notwithstanding the foregoing, all disclaimers and limitations in this Agreement in favour of Company shall in all cases apply. You may not modify, publish, transmit, participate in the transfer, rental or sale of, reproduce (except as provided herein), create derivative works based on, distribute, perform, display, or in any way exploit, the Services in whole or in part. You may not utilize the Application or Services in any way other than as expressly provided in this Agreement. You shall not retain or store any Content in any form other than such portion as may be reasonably necessary for limited periods of time to use the Services. Copying, retention or storing of any Content for other than personal, non-commercial use as permitted in this Agreement is expressly prohibited without prior written permission from Company, or from the copyright holder identified in such Content's copyright notice. Above Border assumes no obligation to update the Application or Services. The content on this site may be changed without notice to you.
3. RIGHT TO MODIFY, SUSPEND OR TERMINATE
Company may, in its sole discretion, change, modify, suspend or discontinue the Application or Services (or any part thereof) at any time, including the availability of any feature, service, or Content, or amend, assign or terminate this Agreement at any time without notice and without liability to you. Company may also impose limits on certain features and services or restrict your access to the Application or Services, or any one or more components or parts of the Application or Services, without prior notice or any liability whatsoever. Company shall have the right, at its sole discretion, to modify or terminate this Agreement and/or the Application or Services at any time by posting a notice on the Site, or by sending you a notice via email or other form of written notice.
4. ELECTRONIC COMMUNICATION AND CONTACT INFORMATION
You agree to continuously maintain and regularly access a valid and active email address and account for the purposes of Company notifying you of any modification or termination of this Agreement and/or changes, modifications, suspension or discontinuation of the Application or Services. You agree that you will in all cases be responsible for reviewing and becoming familiar with any such modifications by Company. Continued use of the Application or Services by you following posting of a notice on the Site, or in the Services, or sending such notice in the Application, or sending email notification constitutes your acceptance of the terms and conditions of this Agreement as modified. You agree that any notice, agreement, disclosure or other communications that Company sends to you electronically will satisfy any legal communication requirements, including that such communications be in writing. You agree to contract electronically.
5. YOUR OBLIGATIONS
You agree as follows: a) You warrant, represent and certify to Company that you are an individual and not a corporation or other legal entity, you are of full legal age and have full capacity in your jurisdiction of residence, location or domicile to form a binding and enforceable contract, you are legally permitted to download the Application and/or use the Services, this Agreement is valid and enforceable in your jurisdiction, and, whether or not you access the Application and/or Services through the account of a third party, including without limitation, your employer or a corporate entity, you take full personal responsibility and will be fully and personally liable for your selection and use of the Application and/or Services; b) You shall be exclusively responsible for obtaining and maintaining any equipment or ancillary services needed to connect to, access, receive or use the Application and/or Services, including, without limitation, hardware devices, software, and other Internet, wireless, broadband, phone or other mobile communication device connection services. c) You shall be exclusively responsible for ensuring that such equipment or ancillary services are compatible with the Application and/or Services and you shall be responsible for all charges incurred in connection with use of the Application and/or Services in connection with all such equipment and ancillary services. d) You are responsible for all of your activity in connection with the use of the Application and/or Services; e) You agree to fully comply with all applicable local, provincial, state, national and foreign laws, treaties and regulations in connection with the Application and/or Services and with any acceptable use policy Company may publish from time to time; f) You will not create derivative works of, reverse engineer, decompile, disassemble, adapt, translate, transmit, arrange, modify, copy, imitate, reproduce, upload, post, transmit, bundle, sell, sub-license, export, merge, transfer, adapt, loan, rent, lease, assign, share, outsource, host, publish, make available to any person or otherwise use, either directly or indirectly, the Application and/or Services in whole or in part, in any form or by any means whatsoever, be they physical, electronic or otherwise; g)Any fraudulent, vulgar, offensive, harassing, objectionable, abusive, tortuous, criminal or otherwise illegal activity will be grounds for immediate suspension or termination by Company of this Agreement and/or access to the Application and/or Services, without notice or liability of any kind to you; h) Without limitation, you will not post or transmit, or cause to be posted or transmitted, any communication or solicitation or other "phishing", "pharming" or "whaling" message designed or intended to obtain password, account, personal information, confidential information or private information from any user of the Application and/or Services or any other third party whatsoever; i) All communication you submit to Company shall be true and accurate; j) You acknowledge and agree that Company has the right to report any and all suspicious or illegal activity to the appropriate legal or police authorities without notice to you; and k) Company does not promote, recommend or condone use of the Application and/or Services during certain activities where there is risk of accident, personal injury, property damage or death. You agree not to use the Services during such activities, and warrant, represent and certify that you will not do so. The restrictions set out in this Agreement shall not apply to the limited extent the restrictions are prohibited by applicable law.
6. INDEMNIFICATION OF COMPANY
YOU SHALL INDEMNIFY, DEFEND AND FOREVER HOLD COMPANY, AND COMPANY'S LICENSORS, SUPPLIERS, CONTRACTORS, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS AND AGENTS, HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, COSTS, DAMAGES, LOSSES, LIABILITIES, SUITS AND EXPENSES (INCLUDING LAWYERS' FEES AND COSTS) ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF OR ACCESS TO THE APPLICATION, SERVICES OR CONTENT, OR ANY BREACH OF THIS AGREEMENT BY YOU. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
7. PERSONAL INFORMATION AND COMPANY COMMUNICATIONS
8. All passwords remain the property of Above Border
...and may be cancelled or suspended at any time by Above Border in its absolute discretion, and without any notice or liability to you or any other person. The use of a password does not restrict Above Border’s access to password-protected information. YOU MUST KEEP YOUR PASSWORD CONFIDENTIAL AND NOT DISCLOSE IT TO ANY PERSON OR PERMIT ANY OTHER PERSON TO USE IT. You must take all reasonable precautions to maintain the secrecy of your password, including ensuring that any information stored on any device with which you download the Application or access the Services is protected against unauthorized access by other persons. Above Border is not required to confirm the identity or authority of any person using your password. Above Border may act upon any communication that is given with the use of your password. Above Border may, in its absolute discretion, require proof at any time of the authority of any person seeking to use your password, and may refuse to accept or act upon any communication if it is not satisfied with such proof. YOU AND ALL PERSONS YOU REPRESENT ARE JOINTLY AND SEVERALLY LIABLE FOR ANY AND ALL USE AND MISUSE OF YOUR PASSWORD. YOU MUST ENSURE THAT ALL USES OF YOUR PASSWORD COMPLY WITH THIS AGREEMENT. PASSWORDS MAY NOT PREVENT UNAUTHORIZED ACCESS TO DATA OR OTHER INFORMATION YOU MAY USE IN CONNECTION WITH THE WEBSITE. YOUR USE OF YOUR PASSWORD IS AT YOUR OWN RISK. YOU MUST NOTIFY ABOVE BORDER IMMEDIATELY AT Support(at)AboveBoreder.com IF YOU KNOW OR SUSPECT THAT YOUR PASSWORD HAS BEEN LOST OR STOLEN OR BECOME KNOWN TO OR USED BY ANY OTHER PERSON. UNTIL YOU GIVE SUCH NOTICE TO ABOVE BORDER AND ABOVE BORDER ACTUALLY RECEIVES AND PROCESSES IT, YOU AND ALL PERSONS YOU REPRESENT WILL CONTINUE TO BE JOINTLY AND SEVERALLY LIABLE FOR ALL AUTHORIZED OR UNAUTHORIZED USE OF YOUR PASSWORD.
9. LOCATION INFORMATION:
10. INTELLECTUAL PROPERTY RIGHTS
The Application and Services and all information (in text, graphical, video and audio forms), images, icons, software, designs, applications, calculators, models, data, and other elements available on or through the Application or Services have been developed by and are the property of Above Border and are protected by intellectual property rights. All information and materials contained within the Application and Services are the property of Above Border including all copyright therein. Subject to the limited license to use this Application and the Services as described above, no person may copy, redistribute, reproduce or republish in any form, or link to the Application or Services or its contents in any manner whatsoever, including by way of hyperlinks or framing, unless that person has obtained the prior written consent of Above Border. Any infringement of the rights of Above Border may result in appropriate legal action. Except as expressly permitted herein, you shall abide by all copyright notices and trademark information, and all other restrictions contained in the Application or Services. If you send any unsolicited ideas, suggestions or other materials, including ideas for new advertising campaigns, new promotions, new or improved applications, goods, services or technologies, product enhancements, processes, materials, marketing plans, or new product names (“Submissions”) to Above Border, you automatically grant (or warrant that the owner of the Submissions grants) to Above Border and its successors and assigns a perpetual, royalty-free, irrevocable, unrestricted, non-exclusive, world-wide, assignable, sub-licensable, right and license to use, copy, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform, display and otherwise exploit the Submissions or any ideas, concepts, know-how or techniques associated with the Submissions for any purpose whatsoever, commercial or otherwise, using any form, media or technology now known or later developed, without providing compensation to you or any other person, without any liability whatsoever, and free from any obligation of confidence or other duties on the part of Above Border or its successors and assigns, and you agree, represent and warrant that all moral rights in the Submissions are waived in favour of Above Border and its successors and assigns.
11. DISCLAIMER OF WARRANTIES AND CONDITIONS
YOUR USE OF THE APPLICATION AND SERVICES AND ANY RESULTING REPORTS GENERATED BY THE APPLICATION IS ENTIRELY AT YOUR OWN RISK. THE APLICATION AND SERVICES ARE PROVIDED STRICTLY ON AN "AS IS", "WHERE IS" AND "AS AVAILABLE" BASIS. COMPANY DOES NOT MAKE, AND YOU DO NOT RECEIVE ANY REPRESENTATION, WARRANTY, CONDITION OR GUARANTEE AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE APPLICATION, SERVICES OR ANY RESULTING REPORTS GERNERATED BY THE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT COMPANY DOES NOT REPRESENT OR WARRANT, OR GIVE ANY CONDITION THAT THE APPLICATION OR SERVICES: (I) WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY HARDWARE, SOFTWARE, DEVICE, PHONE, COMPUTER, SYSTEM OR DATA, (II) WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (III) WILL BE ACCURATE OR RELIABLE, (IV) OR THE COMPUTERS AND SYSTEMS THAT MAKE THE APPLICATION OR SERVICES AVAILABLE ARE FREE OF VIRUSES, WORMS, TROJANS, MALICIOUS CODE, SPYWARE, MALWARE OR OTHER HARMFUL COMPONENTS OF ANY KIND OR (V) WILL NOT CONTAIN ANY ERRORS OR OMISSIONS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, ARISING FROM A COURSE OF CUSTOM OR TRADE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, ANY IMPLIED WARRANTY OR CONDITION OF FITNESS FOR A PARTICULAR PURPOSE, ANY IMPLIED WARRANTY OR CONDITION OF COMPLIANCE WITH ANY DESCRIPTION, OR ANY IMPLIED WARRANTY OR CONDITION OF NON-INFRINGEMENT, VIOLATION AND/OR NON-MISAPPROPRIATION OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED BY COMPANY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THE APPLICATION, SERVICES OR ANY INFORMATION OR REPORT GENERATED BY THE APPLICATION IS OFFERED FOR INFORMATION PURPOSES ONLY, DOES NOT CONSTITUTE LEGAL ADVICE, IS NOT INTENDED TO REPLACE CONSULTATION WITH A LAWYER OR ACCOUNTANT OR OTHER APPLICABLE PROFESSIONAL AND SHOULD NOT BE USED FOR THE PURPOSE OF MAKING IMMIGRATION, TAX, INSURANCE, HEALTH CARE OR ANY OTHER RELATED DECISIONS. THE FOREGOING SHALL SURVIVE ANY TERMINATION OR EXPIRY OF THIS AGREEMENT, HOWSOEVER CAUSED.
12. LIMITATION OF LIABILITY
NEITHER COMPANY NOR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, LICENSORS, CONTRACTORS OR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE APPLICATION OR SERVICES SHALL BE LIABLE TO YOU OR ANYONE CLAIMING THROUGH YOU FOR ANY LOSS OF PROFITS OR REVENUE, DAMAGE TO PROPERTY OR PERSON, LOSS OR INACCURACY OF DATA OR DETRIMENTAL RELIANCE THEREON, FAILURE TO REALIZE EXPECTED RESULTS, REVENUES OR SAVINGS, ECONOMIC LOSS OF ANY KIND, OR INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE, EXEMPLARY OR INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION, THE COST OF ANY SUBSTITUTE PROCUREMENT), RESULTING FROM YOUR ACCESS TO, RELIANCE ON, OR USE OF, OR INABILITY TO ACCESS OR USE THE APPLICATION OR SERVICES, WHETHER BASED ON OR IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY. THE FOREGOING SHALL APPLY WHETHER OR NOT COMPANY KNOWS OF THE POSSIBILITY OF SUCH DAMAGE OR HAS BEEN ADVISED OF SUCH POSSIBILITY, OR SUCH POSSIBILITY IS REASONABLY FORESEEABLE. COMPANY SHALL IN NO EVENT BE LIABLE TO YOU OR ANYONE ELSE FOR ANY INACCURACY, ERROR OR OMISSION IN, OR LOSS, INJURY OR DAMAGE CAUSED IN WHOLE OR IN PART BY FAILURES, DELAYS OR INTERRUPTIONS IN THE APPLICATION OR SERVICES GENERALLY OR SPECIFICALLY, AND ANY CONTENT OR SERVICES CONTAINED THEREIN OR SUPPLIED SUBSEQUENTLY BY AGREEMENT BETWEEN YOU AND COMPANY. YOU ACKNOWLEDGE THAT ABOVE BORDER CANNOT ENSURE THE SECURITY OR PRIVACY OF INFORMATION YOU PROVIDE THROUGH THE INTERNET AND YOUR EMAIL MESSAGES, AND YOU RELEASE US FROM ANY AND ALL LIABILITY IN CONNECTION WITH THE USE OF SUCH INFORMATION BY OTHER PARTIES. YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS US, OUR OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, FROM ANY LOSS OR DAMAGES, INCLUDING WITHOUT LIMITATION REASONABLE LEGAL FEES, WHICH WE MAY SUFFER FROM YOUR ACTIVITIES ON OR USE OF THE APPLICATION OR SERVICES, INCLUDING WITHOUT LIMITATION ANY BREACH BY YOU OF THIS AGREEMENT, OR COMPLAINTS MADE BY OTHER PARTIES AGAINST YOU. YOU SHALL COOPERATE AS FULLY AS REASONABLY REQUIRED IN THE DEFENCE OF ANY CLAIM.
The Application or Services may include links to third party products, services, resources or websites. Company has no control over such third parties, their business, goods, services or content. Any and all such links are provided to you as a convenience only, without any warranty, condition, guarantee or representation by Company whatsoever. You use or access any such links solely at your own risk. A link to another site should not be construed to mean that Above Border is affiliated or associated with same or that it recommends or endorses any of the content on such site.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with the laws of the Province of Alberta without regard to its conflict of law provisions and any disputes arising out of this Agreement will be subject to the courts of the Province of Alberta and the federal courts applicable within the Province of Alberta. You hereby irrevocably submit and attorn to the original and exclusive jurisdiction of the courts in Alberta in respect of all disputes arising from this Agreement. If any provision in this Agreement is invalid or unenforceable under applicable law, the remaining provisions will continue in full force and effect. This Agreement will not be governed by the United Nations Convention on Contracts for the International Sale of Goods. Les parties acceptent d’un commun accord que la présente entente soit redigee en anglais. You agree that any Judgment or Order of a court of competent jurisdiction shall be fully registrable and enforceable against you in your jurisdiction of residence, location or domicile. Notwithstanding the foregoing, in the event of breach of this Agreement by you requiring Company to seek injunctive or other equitable relief, Company shall be entitled to seek such injunctive relief in any court of competent jurisdiction without the necessity or requirement of posting bond or undertaking as to damages or showing that money damages are not an adequate remedy. In the event that your place of residence, domicile, physical location or jurisdiction does not recognize or permit enforcement of the foregoing, you may not download the Application or use the Services.
15. GENERAL PROVISIONS
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be severed from this Agreement, with all other provisions remaining in full force and effect. The failure of Company to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Company in writing. This Agreement is effective until terminated by Above Border, with or without cause, in Above Border’s sole and unfettered discretion. We may terminate this Agreement without notice to you if you fail to comply with any of its terms. Any such termination by Above Border shall be in addition to and without prejudice to such rights and remedies as may be available to Above Border, including injunction and other equitable remedies. The disclaimers, limitations on liability, ownership, termination, warranty, governing law and assignment, your license to Above Border for Submissions, your warranty and the indemnity provisions of this Agreement shall survive the termination or expiry of this Agreement. This Agreement enures to the benefit of and be binding upon each of Above Border and its successors and assigns and related persons, and you and your heirs, executors, administrators, successors, and personal representatives, and all persons you represent and their respective successors, assigns and related persons. This Agreement comprises the entire agreement between Company and you with respect to the Application and Services and the entire subject matter of this Agreement and supersedes, repeals or modifies any other agreement between you and Company.